Citation Nr: 1717924 Decision Date: 05/23/17 Archive Date: 06/05/17 DOCKET NO. 13-27 770 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for ischemic heart disease (IHD) as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to May 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 RO decision that denied service connection for IHD. A Board decision was requested and scheduled, but in November 2015, the Veteran withdrew his hearing request. In an April 2016 decision, the Board denied the claim. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2016 joint motion for remand (JMR), the parties (the Veteran and the Secretary of VA) requested that the Board decision be vacated and the issue remanded. In a December 2016 Court order, the joint motion was granted, the Board's April 2016 decision was vacated, and the issue was remanded. The case was subsequently returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In light of the JMR and Court remand, the Board finds that additional development is necessary prior to appellate review. The Veteran contends that he has IHD as a result of herbicide exposure in service. He has primarily asserted that he was exposed to herbicides during a brief temporary duty assignment at Da Nang airbase in South Vietnam on April 15, 1968. He asserts that he left the United States on April 12, 1968, and reported to his new duty station of Udorn Thailand on April 17, 1968. He contends that during the interim time between April 12 and April 17, he was ferrying a fighter bomber aircraft (F-4D) from the United States to Da Nang airbase. He asserted that, had he been ordered to use a contract carrier aircraft, which was the usual way troops were deployed, he would have arrived at his new permanent duty station within a day or two of leaving the United States. The Veteran claimed that he was delayed in Da Nang because of the unavailability of air transportation. In its April 2016 decision, the Board determined that service in the Republic of Vietnam during the Vietnam era had not been verified. The Board noted that the Veteran had not asserted that his claimed Agent Orange exposure occurred in Thailand. In the December 2016 JMR, the parties agreed that the Board erred by failing to provide an adequate statement of reasons or bases in denying entitlement to service connection for ischemic heart disease as a result of exposure to herbicides based on the Veteran's service in Thailand. Specifically, although the Board noted that he served as a pilot at the Udorn Royal Thai Air Force Base (RTAFB) in Thailand, the Board failed to consider whether his additional duties to include, mission planning, computing timing, operating radar/radio/navigational equipment, monitoring electric warning equipment, and maintaining visual watch and radar search for the enemy put him "otherwise near the base perimeter" of the Udorn RTAFB. The parties stated that the Board summarily concluded that the Veteran "did not serve as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter," but failed to address the Veteran's other duties, as provided by his service personnel records. The parties agreed that this failure rendered the Board's statement of reasons or bases incomplete and inadequate. The parties also agreed that in failing to discuss whether the Veteran was "otherwise near the air base perimeter" the Board failed to discuss favorable evidence including the Department of Defense's "Project Checo Southeast Asia Report," which notes that "[T]he perimeter [of Udorn RTAFB] was also very close to the aircraft at several points." The parties agreed that since the Veteran served as a pilot for over six months at Udorn RTAFB, and the Board noted that he flew 91 combat missions from Udorn, the failure to discuss the information contained in this report and any applicability it may have on his claim rendered the Board's statement of reasons or bases inadequate. Service personnel records show that the Veteran was stationed at Udorn RTAFB, Thailand from April 1968 to December 1968 as a pilot, squadron historian, and radar targeting officer, and that he flew many combat missions. Service treatment records show that he was also stationed at U-Tapao Airfield, Thailand, in June and July 1971. Service personnel records reflect that this period of temporary duty was from June to August 1971. A Compensation Service memorandum incorporated into the VA Adjudication Procedures Manual indicates that herbicides, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam era, to include Udorn and U-Tapao. As a result, special consideration of herbicide exposure on a factual basis for Veterans whose duties placed them on or near the perimeters of Thai military bases during the Vietnam era is required. See M21-1, IV.ii.1.H.5.a,b. According to the steps set forth in the VA Manual for assisting in the verification of herbicide exposure in Thailand during the Vietnam era, the case must first be referred to the Joint Services Records Research Center (JSRRC) coordinator to determine whether there is sufficient information to verify herbicide exposure. M21-1, IV.ii.1.H.5.b.4,7. In this case, a May 2011 formal finding from the JSRRC coordinator regarding exposure to herbicides or whether sufficient information was received is of record, but does not reflect that development was conducted with regard to possible herbicide exposure in Thailand. Accordingly, additional development is needed. On remand, the Agency of Original Jurisdiction (AOJ) should contact the Veteran and ask him to describe his duties at Udorn RTAFB, Thailand in 1968, and his duties at U-Tapao, Thailand in 1971, and to state whether his work duties took place near the air base perimeter. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to describe his duties at Udorn RTAFB, Thailand in 1968, and his duties at U-Tapao, Thailand in 1971, and to state whether his work duties took place near the perimeter of these air bases. 2. Attempt to verify the Veteran's claimed in-service herbicide exposure in Thailand and the Republic of Vietnam, to include consideration of the Veteran's statements, in accordance with VA Manual provisions. All requests and responses received should be associated with the claims file. If such verification is not possible, it should be so documented for the record. 3. After undertaking the development above, the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).